Who’s Afraid of the Big Bad Wolf?: The Law Offices of Robin Bresky Wins Reversal of Summary Final Judgment; Now the Injured Plaintiff Can Proceed to Seek Recovery from the Landowner and Lessee

On behalf of an injured plaintiff, The Law Offices of Robin Bresky recently obtained reversal of a summary final judgment that was in favor of the defendants, the landowner and long-term lessee, which were allegedly negligent in the maintenance of their premises and failing to warn of a dangerous condition on the premises.

The plaintiff suffered injuries when she tripped on a piece of iron re-bar protruding out of the ground as she walked across a landscaping area in the parking lot of a shopping center owned and occupied by the defendants. She brought suit against Family Dollar Stores and against the owner of the property and the long-term lessee. The plaintiff argued that the defendants negligently failed to maintain the premises in a reasonably safe condition, failed to correct a dangerous condition of which they should have been aware, and failed to warn of the dangerous condition. The trial judge granted summary judgment in favor of all defendants based upon Wolf v. Sam’s East, Inc., 132 So. 3d 305 (Fla. 4th DCA 2014), in which the Fourth DCA affirmed a summary judgment against a plaintiff who tripped on a tree stump in a landscaping area in the parking lot of a Sam’s Club store and held that Sam’s Club had no duty to make the landscaping area safe for walking when it had already provided concrete walkways.

On appeal, we argued that the facts of the plaintiff’s case were distinguishable from Wolf such that the condition causing her injury could not be considered so open and obvious as to be non-dangerous as a matter of law. Unlike the plaintiff in Wolf, who was injured on a tree root, the plaintiff in this case was injured on a piece of iron re-bar that would not reasonably be expected in a landscaping area. We also argued that the “open and obvious” inquiry would not discharge the duty to maintain the property in a safe condition where the facts of this case showed that the defendants knew or should have known that shoppers were using the “landscaping area” as a well-worn shortcut path to walk from the parking lot to the store’s entrance. Although many of the landscaped areas contain grass, trees and re-bar tree tie-downs, the area where the plaintiff fell contained no trees, plants, or other landscaping features, and very little grass. The defendants claimed they had no duty to make the landscaping area safe because it was not an area intended for walking. But photographs showed many footprints in the dirt around the area where the plaintiff fell, as well as trash in the area and a trash can indicating that the defendants may have invited shoppers to walk there.

The Third DCA agreed with our position and reversed summary final judgment as to the owner and lessee of the property. (The judgment as to Family Dollar was affirmed because the other two defendants had sole ownership, control, and maintenance responsibility of the parking lot.) The Third DCA stressed that unlike Wolf and other similar cases involving landscaping areas, there was evidence indicating that the landscaping area in this case “allegedly had been in continuous and obvious use as a pedestrian shortcut for some time, raising the issue of notice to the defendants with regard to their duty to invitees.” The appeals court held that there were triable issues of fact regarding the existence of a dangerous condition and its foreseeability, its open and obvious nature, and whether the defendants could be deemed to have constructive knowledge that the area had become a regularly-used footpath. This favorable result for our client allows her to resume her case in the trial court so that she may attempt to recover damages for her injuries.

* The decision is not final until disposition of any timely filed motions for rehearing.

Please click here to download the complete opinion or read the decision online.

The Law Offices of Robin Bresky is a dedicated appellate law firm handling
civil and criminal court appeals in all District Courts of Appeal in
Florida. The firm also provides effective trial and litigation support.
The firm serves Boca Raton, Delray Beach, Boynton Beach, West Palm Beach,
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lower tribunals within the jurisdiction of the Fourth District Court of
Appeal, the federal Eleventh Circuit Court of Appeals, and the Florida
Supreme Court and all other appellate courts in Florida, including the
appellate divisions of the circuit courts (which hear appeals from county
courts).

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